Westminster City Council (202124824)

REPORT

COMPLAINT 202124824

Westminster City Council

20 June 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration,’ for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

This complaint is about:
1. The landlord’s response to the resident’s reports of damp and mould.
2. The handling of the associated complaint.

Background and summary of events

Background

The resident is a leaseholder of a one-bedroom flat in a block. The lease transferred to the resident on 31 July 2009.
The landlord confirmed to this Service it has no vulnerabilities recorded for the resident.

Scope of investigation

The resident said the lack of action taken by the landlord in resolving the damp and mould affected her mental and physical health. The Ombudsman does not doubt her comments. However, as this Service is an informal alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are better suited for consideration by a court or via a personal injury claim. Nonetheless, the Ombudsman has considered the distress and inconvenience that may have been caused to the resident.
The resident complained to this Service about further issues including problems with a radiator, the boiler pressure, and a previous vermin issue. However, these matters were not raised in the initial complaint to the landlord. The Ombudsman cannot investigate aspects of a complaint which have not exhausted the landlord’s complaint procedure. The resident will need to contact the landlord and, if appropriate, raise a separate complaint to get these matters investigated.
The resident is dissatisfied with how a loss adjuster handled an insurance claim on behalf of an insurer. The insurer is regulated by the Financial Conduct Authority and is not a member of the Housing Ombudsman Scheme. Therefore, this aspect of the complaint is not within our remit. The resident has since referred this aspect of her complaint to another Ombudsman Service. This report references the insurer for context only and does not outline all the actions taken by it.

Policies and procedures

The landlord has a 2 stage complaints policy. Complaints will generally be acknowledged within 2 working days. A stage 1 response will be issued within 10 working days. A stage 2 response will be issued within 20 working days. Some complaints may need longer to investigate and where this is the case, a holding response will be sent explaining the reason for the delay and when the resident should receive a full response.
The landlord’s leaseholder’s handbook states under the terms of the lease, the resident is responsible for maintaining the interior of the property, excluding any structural items and communal services. It also says it is the resident’s responsibility to take out their own contents insurance policy.

Summary of events

On 12 July 2021, the resident reported an ingress of water in the junction between the living room and bedroom from the balcony of the property above. She said the water filled the wall cavity.
Records show the landlord attended the property the same day and found the upstairs balcony drain to be clear. It is recorded that the drain was unable to cope with the heavy rainfall at the time, causing the water ingress.
A buildings insurance claim was made on 14 July 2021. The insurer appointed a loss adjuster to handle the claim. As the insurer is responsible for the actions of its appointed loss adjuster and contractor(s), this report refers to the insurer only for ease of reference.
On 22 July 2021, the insurer inspected the damage and a scope of works for the repair to the damaged area was estimated. The scope of works was approved. Repairs were completed in October 2021, once the insurance excess had been paid. The claim was closed.
In early November 2021, the resident contacted the insurer and explained the property was damp. She was informed the source of the damp needed to be confirmed before it could be considered as part of the previous claim. The insurer explained damp is a general exclusion under the policy, but it would review evidence from the resident.
Shortly after, the resident told the landlord that her flat was damp following the water ingress in July 2021 and there was mould growing. She was concerned there may be water in the walls. The landlord said it would arrange a survey to investigate. The resident told the landlord she felt the property was inhabitable. She said she had a serious cough and had been referred for a chest x-ray. She explained she never previously had an issue with damp or humidity in the property until the ingress of water occurred. She had been living there for over a decade.
On 9 November 2021, the landlord discussed the matter with the insurer and reviewed a copy of the insurer’s surveyor’s report, moisture readings, scope of work and photos. The insurer explained it repaired specific areas of the property that were damaged due to the water ingress. It said it could not appoint anyone to investigate the cause of the damp without evidence it was linked to the insured event, as damage caused by damp alone was excluded from the policy.
The landlord attended the property on 9 November 2021. It noted that a visual inspection of the living room and bedroom walls showed no signs of yellow staining, black mould or salt crystals that would indicate the areas were wet. It used the resident’s moisture meter and recorded moisture levels in the walls of 9% in the living room and 11% in the bedroom. It noted an area around the size of a 5p coin that had bubbled and said this could be due to poor preparation of the area prior to painting.
The resident told the landlord that personal items that had been stored in the hallway were damaged by mould. The landlord said this was outside of the area affected by the ingress of water in July 2021.
Following the home visit, the resident made the landlord aware of high humidity and mould in a cupboard housing a communal waste pipe. She said she had used the cupboard for storage for over a decade and there had never been mould before.
On 15 November 2021, the resident informed the landlord she had previously measured the moisture content of the walls to be 10-14% and it was now reading 8-9%. She explained she was constantly running a dehumidifier.
The landlord agreed to carry out investigations to check for a possible leak. On 19 November 2021, its contractor confirmed there was no leak on the pipework within the bathroom. A CCTV survey was requested to check the waste pipe. This was scheduled for 7 December 2021. The landlord’s records indicate the job was not completed on this date as the operative needed to access the upstairs property and use a smaller camera.
The resident raised a formal complaint to the landlord by email on 2 December 2021. She said in summary:
1. The landlord attended the property on 9 November 2021 with an unqualified tradesperson who did not have working equipment to check the moisture levels in the walls.
2. On that day, she agreed the hallway was damper than the area next to the cavity wall that was flooded.
3. She used a dehumidifier daily to remove one to two litres of water.
4. No work was done to ensure that the area was adequately dry before the walls were redecorated, and the insurer only took two moisture readings of the walls.
5. She lived in the property for over ten years, and it had only become wet and mouldy following the ingress of water.
6. She was concerned about the impact on her health.
7. As the case with the insurer was closed, she wanted the landlord to accept full liability for the matter.
8. She said she would be sending a copy of the complaint to the Financial Ombudsman Service.
The landlord responded the same day and said:
1. It visited her home with a site manager who had over 33 years’ experience in property building and maintenance.
2. It confirmed what happened as per paragraph 16 of this report.
3. It had arranged a leak detection survey to her property and the property above, which showed no leaks.
4. A CCTV survey had been ordered for the main stack pipe.
5. It had not given a professional opinion regarding the cause of the damp to the insurer.
6. The landlord could not accept liability for the ingress of water or any other matters until the cause of the damp and mould had been identified.
The landlord responded to further concerns from the resident on 8 December 2021 and stated:
1. The water ingress would not have caused damaged to items in her hallway.
2. She should contact her contents insurer to claim for damaged personal items.
3. During the winter months, a dehumidifier will extract moisture from a property – this doesn’t mean a home is damp. Moisture can accumulate from daily activates such as cooking, bathing, heat from radiators rising and contacting cold surfaces like walls and windows.
4. It would contact her once the CCTV survey had been completed.
On 16 December 2021, the insurer said the insurance claim will remain closed as there was no evidence the current damp problem was related to the ingress of water. It reminded the resident that the onus was on the homeowner to demonstrate an insured event caused loss or damage to the property.
On 7 January 2022, the landlord raised a work order for an intensive damp survey. A CCTV survey was completed on 26 January 2022. The landlord’s records state no leaks or blockages were identified.
The intensive damp survey took place on 1 February 2022. The surveyor said:
1. High moisture readings were recorded in excess of 20% wood moisture equivalent (‘WME’) to the spine wall between the bedroom and living room when taking a reading using search mode.
2. When the walls were tested using the prongs, the walls were found to be dry. The meter reading to the bedroom wall surface was 13.8% and 10.1% WME.
3. From external observation, there was a blocked gully to the rear balcony. A photo of this was included in the report.
4. Psychrometric readings found relative humidity to be 69.7%, indicating a condensation problem within the property, however there was no mould growth at the time of inspection.
5. The resident said a mould wash had recently been carried out.
6. There had been a leak from above which breached the wall cavity, and it is likely that the area was not allowed to dry out sufficiently and the cavity remained damp.
7. There may also be a defect to the central heating system.
8. Recommendations were made to unblock the gully to the balcony, inspect the central heating system for defects and repair accordingly, and ensure a balance regime of heating and ventilation was introduced.
The report was provided to the landlord on 9 February 2022. On 15 February 2022, it updated the resident and said the ‘report indicates that there is surface moisture in the walls, but the levels recorded are low and indicate insufficient air circulation around the property’. It confirmed the gully had been inspected and was clear. It advised the resident to arrange an inspection of her heating system.
The resident disputed the surveyor’s finding. She said she was told during the inspection that the wall was wet and holding water and she should not sleep in the bedroom. She was concerned the contents of the written report were different from what the surveyor told her in person. She said she lived in the property for over ten years and never experienced a problem with damp and mould until the ingress of water occurred. She stated she had spoken to another damp specialist who informed her that the wall should have been drilled and the plaster removed to allow the wall to dry.
On 1 March 2022, contractors submitted a video of the resident’s balcony drain to the landlord to show it was free flowing and that there were no blockages identified.
The landlord informed this Service that it registered a formal complaint on 15 March 2022. A stage 1 complaint response was issued on 28 March 2022. The landlord said:
1. On 12 July 2021, the property flooded because an external drain could not cope with the volume of rainwater at the time.
2. It arranged for a specialist damp survey to be completed to identify the cause of damp and no issues with the fabric of the building were raised.
3. It summarised the report and recommended that the resident’s heating system was serviced, and the property ventilated to lower humidity levels.
4. It referenced a gully that was blocked with decorative stones and said a work order had been raised to clear this by 20 April 2022.
5. It did not uphold the complaint as it found no service failures in addressing the cause of damp.
The resident disagreed with the landlord’s response on 7 April 2022 and the complaint was escalated to stage 2.
On 3 May 2022, the landlord redirected elements of the resident’s complaint concerning the insurance claim to the insurer for consideration.
The landlord issued its stage 2 response on 6 May 2022. It said:
1. The resident reported that the property had not been dried out properly after a flood in July 2021 and she had since experienced mould.
2. When it visited the property in November 2021, there were no visible signs that the wall had been painted when it was still wet and moisture readings were below acceptable levels.
3. It felt the issues the resident was experiencing was not due to the water ingress in July 2021 as they were on internal walls. As such, it undertook investigations to check for a leak from above and arranged for a survey from a damp specialist.
4. The resident could make a claim via its public liability insurance if she felt the landlord was negligent in its actions and caused loss or damage to the resident.
5. It did not uphold the resident’s complaint as it had no evidence that its original position was incorrect or that there were any service failures.
6. The aspect of the complaint regarding the property insurer had been redirected for the insurer to respond to the resident.
In September 2022, following completion of the landlord’s internal complaint procedure, the resident arranged an independent damp survey to access the walls for damp and assess if her lifestyle is likely to have caused mould to grow on her personal belongings.
The surveyor said:
1. There was no evidence of mould on personal belongings at the time of inspection.
2. After a period of monitoring, average humidity readings were at 59%. Only air-dry readings were recorded to the walls, floor, and ceiling during the inspection.
3. They concluded that the likelihood of the resident’s lifestyle having caused the mould on her clothes, bags, shoes, and boots at the end of October 2021 is infinitesimal especially as it had not occurred before the water ingress from the flat above or since the property has had time to dry.

Assessment and findings

The Housing Ombudsman provides an informal dispute resolution service which is an alternative to a legal route. Our approach to providing remedies to cases following investigation is framed by three principles – be fair, put things right and learn from outcomes. In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in the Service’s opinion, fair in all the circumstances of the case.

The landlord’s response to the resident’s reports of damp and mould

When presented with reports of damp and mould, this Service would expect the landlord to take proactive and appropriate steps to identify and address damp and mould at the earliest opportunity where possible. This is in accordance with this Service’s Damp and Mould Spotlight report.
The resident reported damp and mould in the property on 3 November 2021. Following this, the landlord obtained information from the insurer about what happened with the claim. It attended the property four working days after it was first made aware there was a problem. While the Ombudsman finds the landlord acted within a reasonable timescale, it was not appropriate for it to attend without a functioning moisture detection instrument.
From the limited information available, it is not clear what parts of the walls were tested by the landlord, what type of instrument was used and whether the resident’s meter was calibrated. The readings obtained showed the relative moisture content just under the surface level, however the landlord has not demonstrated that it investigated the moisture levels deeper into the cavity wall or took readings from the area where the paint had bubbled. The Ombudsman finds that the landlord should have provided more detailed records to evidence its actions and decision making at this time.
The resident strongly feels the landlord’s comments following the visit to the property caused the insurer to take no further action with the claim. However, an email sent to the landlord by the insurer before the visit took place states the insurer was unable to instruct anyone to investigate the issues because there is no evidence to prove the damp was caused by the ingress of water, and damp alone is excluded under the term of the policy. This indicates the landlord’s actions after the visit to the property had no bearing on the insurer’s decision making.
This Service finds that the landlord acted reasonably by arranging further investigations to determine the cause of the damp within the property. As no problems were identified with the drainage or pipework, it was appropriate for the landlord to continue its investigation by arranging an intensive damp survey.
The landlord’s surveyor conducted an intensive damp survey approximately 29 weeks after the ingress of water. It reported high moisture readings in the spine of the wall between the bedroom and living room when in “search mode” but when tested using “the prongs”, the walls were found to be dry. Within the report, the surveyor concluded it was likely that the “cavity remains damp” following the ingress of water. Although “prongs” are referenced within the report, the accompanying photos do not show readings taken with prongs/probes or any investigations to the wall cavity. Instead, readings appear to have been taken with pins, which show the relative moisture level of the material between two electrodes. It is of concern to the Ombudsman that the landlord did not take further steps to investigate the reason for the high moisture reading in ‘search mode’ after this was identified.
This Service would expect a landlord to rely on the opinion of appropriately qualified experts. The surveyor in question was a ‘Certified Surveyor in Remedial Treatments’ (CSRT), which is a nationally recognised qualification. Therefore, the Ombudsman finds it was reasonable for the landlord to explore the surveyor’s observations regarding condensation, heating, and a blocked gully. Considering the conclusions within the report, it would have been appropriate for the landlord to seek clarification or further advice from the surveyor regarding their statement about a potentially damp wall cavity. It’s failure to do so caused distress to the resident as she felt the surveyor’s comments supported her view that the property remained wet following the ingress of water, yet this was not addressed by the landlord.
In addition, the landlord was aware its insurer required evidence that the damp and mould experienced by the resident was a direct cause of the ingress of water before it would take further action. Therefore, it would have been reasonable for the landlord to carry out further investigations into the wall cavity and provide any findings to the insurer to consider. However, the landlord did not do so.
The evidence available indicates the resident was caught in between the insurer and the landlord. In the Ombudsman’s opinion, it would have been pragmatic for the landlord to commission a test using a deep wall probe into the area with high moisture readings to establish whether there was moisture within the wall cavity, or at the very least discuss this option with its surveyor. The landlord’s failure to do this contributed to the worry and distress experienced by the resident.
The resident’s damp survey from September 2022, concluded the property was dry and no mould was present apart from a small amount at the junction of the door to the balcony.
At the time of writing this report, the specific cause of the mould is unknown. Based on the lack of evidence regarding the specific cause of the mould and the circumstances of this complaint, this Service cannot fairly hold the landlord responsible for the resident’s damaged personal items. It was correct for the resident to be referred to her content’s insurer, and it is noted the landlord also provided the resident details of its public liability insurer. However, the Ombudsman finds there were several failings by the landlord as outlined above which contributed to the distress and inconvenience experienced by the resident. This amounts to service failure. An Order has been made to reflect this below.

The handling of the associated complaint

Within its submission to this Service, the landlord said it recorded the resident’s stage 1 complaint on 15 March 2022. However, records show the resident initially made a complaint by email on 2 December 2021. The landlord failed to record this as a formal complaint and therefore, there was a significant delay progressing the complaint through the landlord’s internal complaint procedure. This was contrary to good complaint handling practice and delayed the resident from being able to escalate her complaint. However, it is noted that the landlord continued to investigate the damp and mould within the property and broadly kept the resident updated throughout.
Within its stage 1 and stage 2 response, the landlord quoted part of the damp survey where it said it was likely the cavity wall remained damp. At both stages, the landlord failed to identify that it could take further action to explore what was happening within the wall cavity and what impact this was having on the property. This was the crux of the resident’s complaint, and the Ombudsman would reasonably expect the landlord to address this within its complaint response. It was not reasonable to quote this part of the report and then not address it. This was not in line with the Ombudsman’s Complaint Handling Code (published on our website) which sets out guidance for landlords on how to address complaints. The Code states that each response must confirm the decision on the complaint and the reasons for any decisions it made. There was a lack of reasoning on this aspect of the complaint.
The Ombudsman finds it appropriate in the circumstances that at stage 2, the landlord provided details of its public liability insurance provider. It also acted fairly by directing elements of the complaint to the building’s insurer, which was responsible for how the claim was handled.
Considering the complaint handling failures identified above, the landlord is ordered to pay the resident £100 compensation. This compensation is in-line with the Ombudsman’s Remedies guidance (published on our website).

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s response to the resident’s reports of damp and mould.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the handling of the associated complaint.

Reasons

The landlord failed to seek further information or clarification from its surveyor following their reports of high moisture readings in the spine of the wall. It also failed to evidence all its actions during the visit to the property in November 2021.
The landlord did not record or acknowledge the resident’s complaint at the time it was initially made. This delayed the internal complaint procedure by approximately three months. It also failed to explain its decision-making following receipt of the surveyor’s report.

Orders and recommendations

Orders

The landlord is ordered within four weeks from the date of this report to pay the resident £200 compensation comprised of:
1. £100 to recognise the time, trouble, distress, and inconvenience caused to the resident by its handling of reports of damp and mould.
2. £100 to reflect the complaint handling failures.
The landlord must provide evidence of compliance to this Service within 4 weeks from the date of this report.